16 U.S.C. § 973d — Exceptions

Page 1581 TITLE 16—CONSERVATION § 973d Statutory Notes and Related Subsidiaries EFFECTIVE DATE Authority to promulgate regulations effective on June 7, 1988, with any such regulation not to be effec- tive before date on which Treaty enters into force for the United States, see section 21 of Pub. L. 100–330, set out as an Effective Date note under section 973 of this title. TRANSFER OF FUNCTIONS For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relat- ing thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Secu- rity, and the Department of Homeland Security Reor- ganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6. § 973c. Prohibited acts (a) Except as provided in section 973d of this title, it is unlawful for any person subject to the jurisdiction of the United States— (1) to violate any provision of this chapter or any regulation or order issued pursuant to this chapter; (2) to use a vessel for fishing in violation of an applicable national law; (3) who has entered into a fishing arrange- ment under paragraph 3 of Article 3 of the Treaty, to violate the terms and conditions of such fishing arrangement if the Secretary of State has decided under section 973p of this title that Article 4 and paragraph 6 of Article 5 of the Treaty shall apply to the arrange- ment; (4) to use a vessel for fishing in any Limited Area in violation of any requirement in Sched- ule 3 of Annex I of the Treaty; (5) to use a vessel for fishing in any Closed Area; (6) to falsify any information required to be reported, notified, communicated, or recorded pursuant to a requirement of this chapter, or to fail to submit any required information, or to fail to report to the Secretary immediately any change in circumstances which has the ef- fect of rendering any such information false, incomplete, or misleading; (7) to intentionally destroy evidence which could be used to determine if a violation of this chapter or the Treaty has occurred; (8) to refuse to permit any Authorized Offi- cer or Authorized Party Officer to board a fishing vessel for purposes of conducting a search or inspection in connection with the enforcement of this chapter or the Treaty; (9) to refuse to comply with the instructions of an Authorized Officer or Authorized Party Officer relating to fishing activities under the Treaty; (10) to forcibly assault, resist, oppose, im- pede, intimidate, or interfere with— (A) any Authorized Officer or Authorized Party Officer in the conduct of a search or inspection in connection with the enforce- ment of this chapter or the Treaty; or (B) an observer in the conduct of observer duties under the Treaty; (11) to resist a lawful arrest for any act pro- hibited by this section; (12) to interfere with, delay, or prevent, by any means, the apprehension or arrest of an- other person, knowing that such other person has committed any act prohibited by this sec- tion; or (13) to ship, transport, offer for sale, sell, purchase, import, export, or have custody, control, or possession of, any fish taken or re- tained in violation of this chapter or any regu- lation, permit, or the Treaty, with the knowl- edge that the fish were so taken or retained. (b) Except as provided in section 973d of this title, it is unlawful for any person subject to the jurisdiction of the United States when in the Li- censing Area— (1) to use a vessel to fish unless validly li- censed as required by the Administrator; (2) to use a vessel for directed fishing for southern bluefin tuna or for fishing for any kinds of fish other than tunas, except that fish may be caught as an incidental by-catch; (3) to use a vessel for fishing by any method other than the purse-seine method; (4) to use any vessel to engage in fishing after the revocation of its license, or during the period of suspension of an applicable li- cense; (5) to operate a vessel in such a way as to disrupt or in any other way adversely affect the activities of traditional and locally based fishermen and fishing vessels; (6) to use a vessel to fish in a manner incon- sistent with an order issued by the Secretary under section 973i of this title; or (7) except for circumstances involving force majeure and other emergencies involving the health or safety of crew members or the safety of the vessel, to use an aircraft in association with the fishing activities of a vessel unless it is identified in the license application for the vessel, or any amendment thereto. (Pub. L. 100–330, § 5, June 7, 1988, 102 Stat. 592.) § 973d. Exceptions (a) The prohibitions of section 973c of this title and the licensing requirements of section 973g of this title shall not apply to fishing for albacore tuna by vessels using the trolling method or to fishing by vessels using the longline method in the high seas areas of the Treaty area. (b) The prohibitions of section 973c(a)(4), (a)(5), and (b)(3) of this title shall not apply to fishing under the terms and conditions of an arrange- ment which has been reached under paragraph 3 of Article 3 of the Treaty and which, pursuant to a decision by the Secretary of State under sec- tion 973p of this title, is covered by Article 4 and paragraph 6 of Article 5 of the Treaty. (Pub. L. 100–330, § 6, June 7, 1988, 102 Stat. 594; Pub. L. 108–219, title IV, § 402, Apr. 13, 2004, 118 Stat. 617.) Editorial Notes AMENDMENTS 2004—Subsec. (a). Pub. L. 108–219 substituted ‘‘or to fishing by vessels using the longline method in the high seas areas of the Treaty area’’ for ‘‘outside of the 200 nautical mile fisheries zones of the Pacific Island Par- ties’’. Page 1582 TITLE 16—CONSERVATION § 973e 1 So in original. ‘‘Code’’ probably should not appear. § 973e. Criminal offenses (a) Prohibited acts A person is guilty of a criminal offense if he or she commits any act prohibited by section 973c(a)(8), (10), (11), or (12) of this title. (b) Sentence and fine Any offense described in subsection (a) of this section is punishable by a fine of not more than $50,000, or imprisonment for not more than 6 months, or both; except that if in the commis- sion of any such offense the person uses a dan- gerous weapon, engages in conduct that causes bodily injury to any Authorized Officer, Author- ized Party Officer, or observer under the Treaty in the conduct of their duties, or places any such Authorized Officer, Authorized Party Officer, or observer in fear of imminent bodily injury, the offense is punishable by a fine of not more than $100,000 or imprisonment for not more than 10 years, or both. (c) Jurisdiction The district courts of the United States shall have jurisdiction over any offense described in this section. (Pub. L. 100–330, § 7, June 7, 1988, 102 Stat. 594.) § 973f. Civil penalties (a) Determination of liability; amount; participa- tion by Secretary of State in assessment pro- ceeding Any person who is found by the Secretary, after notice and an opportunity for a hearing in accordance with section 554 of title 5, to have committed an act prohibited by section 973c of this title, shall be liable to the United States Code 1 for a civil penalty. Before issuing a notice of violation, the Secretary shall consult with the Secretary of State. The amount of the civil penalty shall be determined in accordance with considerations set forth in the Treaty and shall take into account the nature, circumstances, ex- tent, and gravity of the prohibited acts com- mitted, and with respect to the violator, the de- gree of culpability, any history of prior offenses, ability to pay, and such other matters as justice may require. Except for those acts prohibited by section 973c(a)(4), (5), (7), (8), (10), (11), and (12), and section 973c(b)(1), (2), (3), and (7) of this title, the amount of the civil penalty shall not exceed $250,000 for each violation. Upon written notice, the Secretary of State shall have the right to participate in any proceeding initiated to assess a civil penalty for violation of this chapter. (b) Judicial review of assessment; procedures ap- plicable Any person against whom a civil penalty is as- sessed under subsection (a) of this section may obtain review thereof in the United States dis- trict court for the appropriate district by filing a complaint in such court within 30 days from the date of the order and by simultaneously serving a copy of the complaint by certified mail on the Secretary, the Attorney General of the United States, and the appropriate United States Attorney. The Secretary shall promptly file in the court a certified copy of the record upon which the violation was found or the pen- alty imposed. The findings and order of the Sec- retary shall be set aside or modified by the court if they are not found to be supported by substantial evidence, as provided in section 706(2) of title 5. (c) Failure to pay assessment of civil penalty; re- covery by Attorney General Except as provided in subsection (g) of this section, if any person fails to pay an assessment of a civil penalty after it has become a final and unappealable order, or after the appropriate court has entered final judgment in favor of the Secretary, the Secretary shall refer the matter to the Attorney General of the United States, who shall recover the amount assessed in any appropriate district court of the United States. (d) In rem liability for civil penalty; jurisdiction; maritime lien on vessel Except as provided in subsection (g) of this section, a fishing vessel (including its fishing gear, furniture, appurtenances, stores, and cargo) used in the commission of an act prohib- ited by section 973c of this title shall be liable in rem for any civil penalty assessed for the viola- tion under this section and may be proceeded against in any district court of the United States having jurisdiction thereof. The penalty shall constitute a maritime lien on the vessel which may be recovered in an action in rem in the district court of the United States having jurisdiction over the vessel. (e) Compromise, etc., of civil penalty The Secretary, after consultation with the Secretary of State, may compromise, modify, or remit, with or without conditions, any civil pen- alty which is subject to imposition or which has been imposed under this section. (f) Conduct of hearings For the purposes of conducting any hearing under this section, the Secretary may issue sub- poenas for the attendance and testimony of wit- nesses and the production of relevant papers, books, and documents, and may administer oaths. Witnesses summoned shall be paid the same fees and mileage that are paid to witnesses in the courts of the United States. In case of contempt or refusal to obey a subpoena served upon a person pursuant to this subsection, the district court of the United States for any dis- trict in which the person is found, resides, or transacts business, upon application by the United States and after notice to the person, shall have jurisdiction to issue an order requir- ing the person to appear and give testimony be- fore the Secretary or to appear and produce doc- uments before the Secretary, or both, and any failure to obey the order of the court may be punished by the court as a contempt thereof. (g) Waiver of referral to Attorney General If a vessel used in a violation of section 973c(a)(1), (2), (3), (4), (5), (6), (7), (8), (9), or (13) or section 973c(b) of this title for which a civil penalty has been assessed— (1) had a valid license under the Treaty at the time of the violation, and